The presidential candidates may be reluctant to talk about gun regulation in the wake of recent tragedies such as the shooting in the Aurora, Colorado, movie theater, but not retired Justice John Paul Stevens.
Stevens on Monday said he finds it “mindboggling” how little activity there has been by Congress and other lawmakers in reaction to those events. And he sees nothing in the Supreme Court’s recent Second Amendment rulings to prevent a legislative response. “The failure of Congress to take action can’t be blamed on the Court’s opinion,” he said, referring to the 2008 landmark District of Columbia v. Heller.
The justice voiced his opinion while fielding more than a dozen questions from the audience at a luncheon sponsored by the Legal Action Project of the Brady Center to Prevent Gun Violence.
Stevens dissented in the 5-4 decision in Heller, which found that the Second Amendment guaranteed an individual right to possess a gun in the home. One good aspect of the ruling, he said, was that the ruling is limited to possession of handguns in the home for self-defense. He noted, in particular, Part III of the Heller decision which said that the sorts of weapons protected were those “in common use at the time.” That statement, he explained, would exclude sawed off shotguns and automatic weapons.
In response to questions about open-carry gun laws and laws permitting concealed weapons in public places, Stevens said the logic of Part III offered support for challenges to those laws as well. He pointed to Heller’s language that nothing in the opinion should cast doubt on laws forbidding the carrying of firearms in sensitive places.
“Justice [Antonin] Scalia deserves praise for including his advisory opinion in Part III,” said Stevens of Heller’s author.
Jonathan Lowy, director of the Legal Action Project, told the audience that since the Heller decision, more than 500 legal challenges to gun laws have been filed, but most have been rejected by the courts. He announced a new initiative—Lawyers for a Safer America—in which his project plans to recruit private attorneys to engage in “high impact” litigation to develop a body of new constitutional law around guns.
Since his retirement in June 2010, Stevens has used a series of speeches to call attention to Supreme Court decisions that he believes were wrongly decided. He reiterated on Monday that he put at the top of his list Printz v. U.S. In that case, a 5-4 Court, with Stevens dissenting, held that provisions in the Brady Handgun Violence Protection Act which required state and local law enforcement officials temporarily to do background checks on gun buyers commandeered those officials in violation of the Constitution.
“The anti-commandeering rule is unsupported by the constitutional text,” Stevens told the audience. “I really think that [decision] is one of the worst.”
Marcia Coyle can be contacted at firstname.lastname@example.org.